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IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE 



9 /9S0 



CCvt 



I^^I THE MATTER of the complaint of Ms. CHERIE 3ELL of 
Niagara Falls, Ontario, that she was discriiainated 
against with respect to the term or condition of 
empioyTTient because of sex, by Ernest Ladas and the 
Flaming Steer Steak House Tavern Inc. , 5993 Main 
Street, Niagara Falls, Ontario, contrary to paragraph 
4(1) (b) and 4(1) (g) of the Ontario Human Rights Code 
as amended; 



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O THE MATTER of the complaint of Ms. AilNA K0RC2AK of 
Niagara Falls, Ontario, that she was discriminated 
against with respect to the term or condition of 
employment because of sex, by Ernest Ladas and the 
Flaming Steer Steak House Tavern Inc. , 5 993 Main 
Street, Niagara Falls, Ontario, contrary to paragraph 

g 

as amended. 



4(1) (b) and 4(1) (g) of the Ontario Human Rights Code 



MR. 0.3. SHIZ-IE, Q.C 



CHAI?i^-AN 



APPEARANCES 



MJR- T.R, LEDE?«ER 
MR. M.J. MC GARRY 



C01J7TSEL fo: 
COUNSEL fo; 



the Ccmmissic] 
the Resocnden' 



Hearings m tnase r.atters '.7ara nelc on October 4 , 5, 1979 ; 
December 17, 13, 1979; January 15, 1930; Februarv 25, 1930; 
March 4, 19 30. 



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DECISION 

In this aiattar the complainants alleged that the 
respondent, Ernest Ladas, who is an officer and owner 
of the Flaming Steer Restaurant, made requests of each 
of them which they refused and which they believe would 
not have been made of male employees. In short, they 
allege that they were sexually harassed and claim that 
such harassment contravenes the provisions of The Ontario 
Human Rights Code (hereinafter referred to as "The Code"). 

There are separate complaints brought by each of the 
complainants against the same respondents and for 
convenience the parties agreed that all the evidence, in 
effect, be applied to both complaints. 

I 

Since this is the first case of this kind to be heard 
under The Code, it may be useful ac the outset to discuss 
the general principles applicable to si-uations of this 
sort, particularly since the issues were very extensively 
and very ably argued by the parties. 

The relevant provisions of The Code are as follows: 



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4.-(l) No person shall, 

(a) refuse to refer to or recruit any 
person for eraplovment ; 

(b) dismiss or refuse to employ or to 
continue to employ any person; 

(c) refuse to train, promote or transfer 
an employee; 

(d) subject an employee to probation or 
apprenticeship or enlarge a period of 
probation or apprenticeship; 

(e) establish or maintain any employment 
classification or category thaf by its 
description or operation excludes any 
person from employment or continued 
employment ; 

(f) maintain separate lines of progression 
for advancement in employment or 
separate seniority lists where the 
maintenance will adversely affect any 
employee; or 

(g) discriminate against any employee with 
regard to any term or condition of 
employment , 

because of race, creed, colour, age, sex, 
marital status, nationality, ancestry, or place 
of origin of such person or employee. 

In my view the purpose of The Code is to establish uniform 
working conditions for employees and -co remove those matters 
enumerated in Section 4 as relevant considerations in the 
work place. Consideration of mat-ers such as "race, creed, 
colour, age, sex, marital status, nationality or place of 
origin" strikes at what -he preamble of The Code refers -o 
"the foundation of freedom, justice and peace", and 
infringes on "the freedom and equality in dignity and 
rights" which this province and this society revere as 



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commonly held values and have enshrined those in The 
Code. Thus, The Code prohibits these values from 
becoming negative factors in the employment relationship. 

Subject to the exception provided in Section 4(6) , 
discrimination based on sex is prohibited by The Code. 
Thus, the paying of a female person less than a male 
person for the same job is prohibited, or dismissing an 
employee on the basis of sex is also prohibited. 3ut 
what about sexual harassment? Clearly a person who is 
disadvantaged because of her sex is being discriminated 
agains-t in her employment when employer conduct denies 
her financial rewards because of her sex, or exacts some 
form of sexual compliance to improve or maintain her 
existing benefits". The evil to be ram.edied is the 
utilization of economic cower or authority so as to 
restrict a woman's guaranteed and equal access to che 
work-place, and all of its benefits, free from ex-rraneous 
pressures having to do with the mere fact that she is a 
woman. Where a wor»an ' s equal access is denied or when 
terms and conditions differ when compared to mala 
employees, the woman is being discriminated against. 



There is no intention to deal with the implications of 
bisexual conduct in the circums-ances of this case. It 
is intended to deal with harassm.ent of female employees 
by a male in authori-y and the principles equally apply 
to the harassment of a male employee by a fem.ale in 
authority as well as homosexual exploitarion . 




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The forms of prohibited conduct that, in my view, are 
discriminatory run the gamut from overt gender based 
activity, such as coerced intercourse to unsolicited 
physical contact to persistent propositions to more 
subtle conduct such as gender based insults and taunting, 
which may reasonably be perceived to create a negative 
psychological and emotional work environment! . There 
is no reason why the law, which reaches into the work- 
place so as to protect the work environment from physical 
or chemical pollution or extremes of temperature, ought 
not to protect employees as well from negative, 
psychological and mental effects where adverse and gender 
directed conduct emanating from a management hierarchy 
may reasonably be construed to be a condition of employ- 
ment. 

The prohibition of such conduct is nor without its 
dangers. One must be cautious that the law not inhibit 
normal social contact between management and employees 
or normal discussion between management and employees. 
It is not abnormal, nor should it be prohibited, activity 
for a supervisor to become socially involved with an 
employee* An invitation to dinner is not an invitation 
to a complaint. The danger or the evil that is to be 
avoided is coerced or compelled social contact where the 
employee's refusal zo participate may result in a loss 
of employment benefits. Such coercion or compulsion 
may be overt or subtle but if any feature of employment 



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becomes reasonably dependent on reciprocating a social 
relationship proffered by a member of management, then 
the overture becomes a condition of employment and may 
be considered to be discriminatory. 

Again, The Code ought not to be seen or perceived as 
inhibiting free speech. If sex cannot be discussed 
between supervisor and employee neither can other values 
such as race, colour or creed, which are contained in 
The Code, be discussed. Thus, differences of opinion 
by an employee where sexual matters are discussed may 
not involve a violation of The Code; it is only when 
the language or words m.ay be reasonably construed to 
form a condition of employment that The Code provides 
a remedy. Thus, the frequent and persistent taunting 
by a supervisor of an employee because of his or her 
colour is discriminatory activity under The Code and, 
similarly, the frequent and persistent taunting of an 
employee by a supervisor because of his or her sex 
is discriminatory activity under The Code. 

However, persistent and frequent conduct is not a condition 
for an adverse finding under The Code because a single 
incident of an employee being denied equality of 
employment because of sex is also prohibited activity. 



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The next issue to be decided is the extent of liability 
under The Code. If a foreman or supervisor discriminates 
because of sex will the compajiy be liable? The law is 
quite clear that companies are liable where members of 
management, no matter what their rank, engage in other 
forms of discriminatory activity. Thus, companies have 
been held liable where lower ranking members of the 
management team engage in anti-'onion activity or dis- 
criminate against employees because of race or colour, 
and the same general law that imposes liability in those 
cases ought to apply where members of the management team 
discriminate because of sex. Thus, I would have no 
hesitation in finding the corporate respondent liable for 
a violation of The Code if one of its officers engaged 
in prohibited conduct and, indeed, the same liability 
would attach if the violator had a lower rank on the 
management team. 

Perhaps the most difficult task facing this 3oard is 
whether similar fact evidence is admissible for the 
purpose of finding a violation of The Code. In these 
matters evidence was submitted on behalf of the complainamis 
to demonstrate that the respondent, Ernest Ladas , 
engaged in similar conduct with other female persons in 
the employ of the respondent. The classic statement of 
the law governing similar fact evidence is contained in 
Makin v Atty-Gen for N.S.vv. [1894] A.C. 57 , 63 L.J.P.C. 41 



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in the judgment of Lord Herscheli who stated: 

"It is undoubtedly not corapeten-:: for the 
prosecution to adduce evidence tending to 
shew that the accused has been guilty of 
criminal acts o-cher than those covered by 
the indictment/ for the purpose of leading 
to the conclusion that the accused is a 
person likely from his criminal conduct or 
character to have committed the offence for 
which he is being tried. On the other hand, 
the mere fact that the evidence adduced 
tends to show the commission of other crimes 
does not render it inadmissible if it be 
relevant to an issue before the jury, and it 
may be so relevant if it bears upon the 
question whether the acts alleged to constitui 
the crime charged in the indictment were 
designed or accidental, or to rebut a defence 
which would other'.vise be open to the accused. 
The statement of these general principles is 
easy, but it is obvious that it may often be 
very difficult to draw the line and to decide 
whether a particular piece of evidence is on 
the one side or the other. " 



The danger in admitting similar fact evidence is that the 
accused person may be convicted not on zhe basis of evidence 
relating to the offence, with which he or she is charged, 
but on the basis of evidence of other acts which show the 
accused has a disposition which makes it likely that the 
accused commin-ced the offence for which he or she is being 
tried. 

The general r^ule relating to similar fact evidence is 
applicable to both criminal and civil m.atters and, -hus , 
in my view it is applicable to m.at-ers falling under The 
Code. MacConald et al v Canada Kelp Co. Ltd. et al [1973] 
39 D.L.R, (3d) 617 [1973] 5 W.W.R. 639 (S.C.Ct of Aco). 



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3ut the difficulty is in the application of the rule. 
The rule is easier to state than to apply particularly 
in sexual cases. As a general rule sexual situations 
do not occur in public. One is often left with only 
the tes-timony of the accuser and -he accused. Kow is 
one to determine the guilt or innocence based on a quick 
assessment of the proponents in the witness box? It is 
suggested that the adversary system through the process 
of examination and cross-examination will lead to the 
truth. But quite often that is not the case- There is 
an artificiality to the process which often tends to 
hide the truth rather than reveal it. The proponents 
make brief appearances in the witness box. Very often 
they are examined and cross-examined by lawyers of 
varying skills. Some witnesses are better than others; 
often the most consummate liar is the better witness 
while the truthful person is hesitant and creates a poor 
impression. In those circumstances it is equally unjust 
to deny a remedy to an injured person as to grant a 
remedy against an innocent person - 

In the contex- of sexual cases very close though-i: should 
be given to adm.itting sim.ilar acts. Apart from evidence 
tending to show particular peculiarities, careful con- 
sideration should be given to -he statement of Lord Cross 
of Chelsea in 3oardman v Director of Public Prosecutions 
[1975] A.C. 421, [1974] 3 all E.R. 337 where discussing 



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similar fact evidencs he said, 



"In such circumstancas the first question 
which arises is obviously whether his 
accusers may not have put their heads together 
to concoct false evidence and if there is any 
real chance of this having occurred the similar 
fact evidence must be excluded. In Reg, v. 
Kilbourne [1973] A.C. 729, it was only ^allowed 
to be given by boys of a different group from 
the boy an alleged offence against whom was 
being considered. But even if collaboration 
is out of the way it remains possible that -he 
charge made by the complainant is false and 
that it is simply a coincidence that others 
should be making or should have made independently 
allegations of a similar character against the 
accused. The likelihood of such a coincidence 
obviously becomes less and less the more people 
there are who make similar allegations and the 
more striking are the similarities in the various 
stories. In the end, as I have said, it is a 
question of degree. " 

I now turn to apply these principles to the facts of the 
two complaints. 



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II 

The first complaint to be dealt with is that of Ms. 
Cherie Bell- Ms. Bell was employed by the Flaming Steer 
Restaurant on weekends from the beginning of September 
in 1977 to mid-October. On November 1, 1977 Ms. Bell 
filed a complaint with the Ontario Human Rights Commission 
alleging sexual harassment by Ernest Ladas on October 3 
and October 9, 1977 and also on October 15 and IS, 1977. 
These complaints were later amplified in a letter dazed 
September 10, 1979 from counsel for the Commission to 
counsel for the respondents. There are essentially three 
incidents about which Ms. Bell complains. The firs- 
involves an incident when Ms. Bell went to pick up her 
first pay cheque, the second is concerned with comments 
that Ernest Ladas made to her when she came to work tired 
and the third incident is concerned with a request by a 
customer for a drink. 

Basically, the evidence and the arguments turned on -he 
question of credibility. Both counsel for the Commission 
and counsel for the respondents were in general agreement 
as to the applicable law. The issue of credibility was 
vigorously comiested by the par-cies. As I have indica-ced 
cases involving sex rarely have a host of corroborative 
witnesses. The two main protagonists in this case are 
Ms. Bell and Mr. E. Ladas. Ms. Bell testified thaz Mr. 
Ladas made comjr.enus to her which were sexually harassing 



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and that her refusal to comply with his suggestions brought 
about her termination. Mr. Ladas denied these allegations 
and maintained that he had at all material times acted 
with complete propriety. 

In this matter the issues of credibility are very 
difficult; however, after considering all the evidence I 
found lMs . Bell's evidence to be less than completely 
candid. 

The first incursion into her credibility concerns her 
testimony about the impact upon her of the alleged 
sexual harassment. Ms. Bell alleged in her complaint and 
testified that on or about October 13, 1977 when she 
called to find her hours of work for the following week 
that she was terminated. Her call followed the alleged 
incidents of sexual harassment. The willingness to work 
is of no moment because persons in need of emplo^'ment may 
be prepared to endure certain humiliations because of 
their financial need. Thus, Ms. Bell's indication than 
she was prepared to work is only important because of what 
she says occurred after her discharge - 

Ms. Bell testified that the impact of Mr. Ladas' state- 
ments were such that she .-was unable to work for a period 
of seven months after her te2rmina-cion . She suggests that 



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the trauma of having worked for Ernest Ladas was such 
that she was so deeply and psychologically affected 
that she was unable to work for such a considerable 
period of time. I note that Ms. 3ell did not seek medical 
assistance despite the severity of her alleged tra'ama. 

In my view, her evidence in this regard is inconsistent. 
On the one hand she was prepared to work at the Flaming 
Steer Restaurant which was the source of her sexual 
harassment and traumatic state, while on the other hand 
she was unable to seek employment elsewhere for seven 
months. Even counsel for the Commission, in his final 
argum.ent, was hard put to explain Ms. Bell's failure to 
seek alternative employment for such a lengthy period 
or to seek medical assistance even frcmi her family doctor 
which would have corroborated such a claim- 
But that evidence, apart from its inherent: weakness, has 
graver implications. First, it suggests a tendency on 
her part to exaggerate and, second, it suggests an 
improper motive by lis. Bell in bringing this complaint. 
I am satisfied, after observing Ms. Bell in the witness 
box and considering her demeanour as well as analyzing 
the evidence that, in all probability, she would not 



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have been incapacitated, for such a lengthy period of 
time, by the remarks she attributes to Mr. Ernest 
Ladas and that she exaggerated her evidence in order 
to assist her case. 

It is also apparent that if Ms. 3eli ' s lack of 
employment for the seven month period resulted from 
sexual harassment she might be compensated accordingly 
by bringing this complaint. Thus, the exaggeration of 
her claim had its financial reward and, by so 
exaggerating her claim, one is left with the impression 
that Ms. Bell's motive in bringing the claim was, in 
par-t, improperly motivated. When this evidence is 
weighed with other evidence it casts considerable doubt 
on Ms. Bell's version of events. 

Fur-ther, on November 1, 1977, after she had been discharged, 
Ms. Bell filed a complaint with the Ontario Human Rights 
Commission. She discussed the complaints with a represen- 
tative of the Commission, Caroline Bell (no relation) who 
testified at the hearing. Caroline Bell indicated -hat 
the complainant, Ms. Cherie Bell, was quite specific 
about her complaint. I.ndeed, -he complainant specified 
that the incidents of sexual harassment by Ernest Ladas 



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occurred on October 3 and 9, 1977 and October 15 and 16, 
1311 , approxi.'nately two and three weeks prior to the 
filing of the complaint. It now appears that the 
incidents could not have happened on those dates because 
the evidence demonstrates chat Mr. Ernest Ladas and the 
complainant did not work together on those dates. 

It is understandable for someone to make a mistake about 
dates, and such errors, in some contexts, might be over- 
looked. However, the complaint was filed only two weeks 
after the alleged incidents and two weeks after Ms. 3ell 
was fired- In the light of her own testimony as to the 
serious impact that the incidents had upon her, Ms. 3ell 
might be expected to have been more precise in her 
recollection. She was, as Caroline 3ell testified, quite 
specific when she filed the complaimis, yet she was wrong 
and that raises a suggestion that she might not be 
accurate about the remaining testimony. 

In fairness, one of the incidents is alleged to have 
occurred on October 15, 1977, when Ernest Ladas was still 
at the restaurant and just before he had changed shifts 
with Tim Ladas, but it is clear that the other inciden-s 
did not occur on the dates specified- At least one of 
the alleged incidents, the pay cheque incident, occurred 
early in September and ought to have been ~iore memorable 
because it allegedly occurred on the day that Ms. Cherie 



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Bell received her first pay cheque. But Ms. Cherie Bell's 
testimony about that incident is also lacking. 

Caroline Bell testified that when she interviewed Cherie 
Bell, prior to the drafting of the complaint, Cherie 
Bell told her that she had been propositioned by Ernest 
Ladas when she had gone to the restaurant to get her 
first pay cheque. She told Caroline Bell that she had 
her baby with her at the time and that this prompted a 
conversation that resulted in a proposition. According 
to Caroline Bell she was told by Cherie Bell that she 
had gone to the restaurant with her baby and Ernest Ladas 
asked her whether it was her baby. He then went on to 
ask her if she was married and she replied that she was 
not. There was further conversation about whether Ms. 
Bell was on the pill and then Ms. Cherie Bell asserted 
that Ernest Ladas propositioned her. 

When the complainant, Ms. Cherie Bell, testified, she gave 
a somewhat different version concerning the pay cheque 
incident. Ms. Cherie Bell testified that she had gone to 
the restaurant with her girlfriend to pick up her pay 
cheque and Ernest Ladas had asked her wha- she was doing 
and she replied that she was going out with her girlfriend 
to the local hotel. She further testified that she and 
Ernest Ladas has some conversa-cicn about what she drank 
and she told him rye and ginger. Ernest Ladas apparently 



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replied that drinking rye stimulated him sexually. Some 
further conversation ensued about the pill and then Ernest 
Ladas is alleged to have propositioned her. 

It is apparent that Ms. Cherie Bell's version of the 
incident given to this inquiry differed from her version 
of the incident given to Ms. Caroline 3ell in 1977, just 
some weeks after the incident is alleged to have occurred. 
When Caroline Bell was cross-examined about the incident 
she indicated that Cherie Bell had also told her about 
going to the hotel with her girlfriend but, after reviewin 
the total evidence, I conclude that there was only one 
occasion when iMs . Cherie Bell went to pick up her pay 
cheque and that her version of the incident, as recited 
to Ms. Caroline Bell, differs from and is not consistent 
with her evidence given at the hearing. At the very least 
if only Ms. Caroline Bell's testimony is considered, it 
appears that Ms. Cherie Bell was not consiste.nt in 
describing the incident to her. Again, one might attribu- 
the inconsistency to the lapse of time be-cween the actual 
event and the hearing, but when this inconsistency is 
viewed in the light of the other evidence it tends to 
affect the credibility of the witness. 

The two other inciden-cs relied upon by the com.plainant 
arise from comments that were allegedly made to her by 
Ernest Ladas on separate occasions which she took to be 



(<- 



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sexual propositions. I do not propose to elaborate on 
these incidents at any length but merely recite them for 
the purpose of the record. Needless to say they are 
also denied by Ernest Ladas. 

The first of these incidents arose when the complainant 
came into work and told Ernest Ladas that she was tired. 
A brief conversation ensued which Ms. Cherie Bell says 
concluded by Ernest Ladas telling her that she reason 
she was tired was because she "screwed too much". Ms. 
Bell then went to her place in the restaurant to do her 
work. Again, the date of this incident appears to be 
incorrect and Ms. Bell interpreted the remark as a pro- 
position. 

The second incident occurred when Ms. Bell received an 
order for a drink, referred to as a sloe Screw. She went 
to the bar and Ernest Ladas asked her what she wanted. 
When she told him he said he would give her a slow screw 
and a fast screw if she wanted. Ms. Bell interpreted zhis 
remark as a proposition. 

The respondents deny that these conversations occurred and 
state that Ms. Bell was terminated because of her sub- 
standard performance, a suspicion that she was stealing 
tips from other v/aitresses, as well as taking money and 
not ringing up the proceeds of sales into the cash register, 
and not charging customers whom she knew, the proper 
amount for what they had ordered. 



( 



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With respect to her performance Ms. Bell admitted that she 
could have been a better waitress, but attributes the lack 
of performance on her part to being new and to being 
nervous which resulted from the sexual harassment. She 
admits to getting orders mixed up and dropping things. 
However, it is also apparent that, according t:o her own 
testimony, fifty per cent of the time worked was not with 
Ernest Ladas and from other testimony less than fifty per 
cent of the time worked was not with Ernest Ladas, so that 
there was no reason for her to have been nervous when 
Ernest Ladas was not present. 

In addition, there was testimony from other employees that 
Ms. 3ell was not a willing co-worker and that they were 
suspicious about their tips. One of the employees tesrified 
that she had customarily received tips from a particular 
group of customers and that these tips diminished when 
Ms. Bell was employed and returned to their former level 
after Ms. Bell left. 

There is one disturbing piece of evidence concerning a 
$10.00 bill that Ms. Bell found under a seat. At the time 
she saw the $10.00 on the floor there was a customer seatiad 
in the booth. Ms. Bell concluded that the SI 0.0 could 
not have fallen from the pocke- or wallet of the particular 
customer, and when the customer left she took the SIO.OO 
bill for herself. In those circumstances it would appear 



'0 



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that it might have been more appropriate to have asked 
the customer whether he had lost any money and the 
failure to ask the customer reflects on Ms. 3ell ' s 
honesty. 

In any event, Mr. Tim Ladas, the brother of Ernest Ladas 
and an officer of the company who also works in the 
restaurant, was highly suspicious of Ms. Bell's performance 
and was aware of complaints about her from other 
employees. On the last night that she worked Ms. Bell 
worked with Tim Ladas. He became very suspicious about: 
her work and particularly her recording of the proper 
amount for drinks Ms* Bell was serving to some customers 
that she !<new. He watched her carefully and concluded 
that she was not charging them fully for the drinks she 
was serving them and, based on her total performance, he 
decided to discharge her. He recorded the drinks she 
was serving and found that the bill did not correspond 
with the number or amount of drinks served. According to 
Ms. Cherie Bell, Mr. Tim Ladas spoke to her about the 
situation that night and she denied it. She also admitted 
that Mr. Ladas was watching her carefully. 

Mr. Tim Ladas decided to discharge Ms. Bell and informed 
his brother, Ernes-, who would be cn shift when she 
called in to tell her that she was discharged and to 



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contact Tim Ladas if she wantad to discuss it. This is 
not a case where the employer need establish just cause 
or that the reason for the employee's discharge was 
because she acted improperly. There is no allegation 
of sexual impropriety against Mr. Tim Ladas and there 
is nothing in the evidence that connects his decision 
to terminate Ms. 3ell with the alleged sexual advances 
of his brother/ Ernest Ladas. In short, I am unable to 
conclude, and there is no evidence, that Tim Ladas fired 
Ms. Bell because she refused the propositions of his 
brother. 

I am further satisfied that Tim Ladas fired Ms. Bell 
because he had reasonable and ample grounds to suspect 
that her work performance was substandard and that her 
general conduct as a waitress was inappropriate. I 
further determine that Mr. Timi Ladas was not motivated 
to discharge Ms. Bell for any reason that might contravene 
the provisions of The Code. There is simply no connection 
between Tim Ladas ' decision and any matter that might 
constitute a violation of The Code and Ms. Bell's complaint 
cannot succeed on that ground - she was not discharged 
because she refused to become sexually involved with Ernest 
Ladas . 

The only remaining aspect of this case concerns the 
allegations of sexual harassment during Ms. Bell's employ- 
ment and the similar fact evidence called to support those 



e 



allegations. In one instance the witness, Miss Carol 
Bassett, who testified, gave evidence that was completely 
hearsay and I am not prepared to accept that evidence. 

In the case of Ms. Valerie Repath, another former 
employee, who testified, I have some difficulty with the 
totality of her evidence. She indicated that she had 
originally been employed in 1972 when advances had been 
made, but the company's records and the evidence suggests 
that she was not employed at that time. Also, Ms. Redpat 
does not recall working in early 1977, although the 
records indicate she was briefly employed at that time. 
And, finally, there is some comfusion concerning what had 
occurred when Ms. Redpath left her employment. She 
apparently indicated at the time that her child was ill 
but in her testimony she stated that she was pregnant 
and lost a child and was hospitalized, and attributes 
this difficulty to being pushed in her work in the 
restaurant. All in all, after considering Ms. Redpath ' s 
testimony, the possible motive for testifying, and her 
demeanour, I find Ms. Redpath' s evidence to be unreliable 
and 1 am not prepared to find that it assis-cs the 
complainant in any way. 

The only other evidence that might be considered as 
similar fact evidence is the evidence of Anna Korccak, 
who is also a complainant, and after considering the 



totality of her evidence, I am not satisfied that it 
should be admitted or given weight in the circumstances 
of this case. I am concerned that its prejudicial value 
outweighs its probative value. Based on the general 
admonitions against receiving similar fact evidence, 
I am hesitant to accept Ms. Korczak's evidence. 
Alternatively, I find that the acts of sexual harassment 
described by Ms, Korczak differ from those described 
by .Ms. Bell and do not indicate a pattern. The features, 
if any, are different with each complainant and do not. 
suggest a par-ticular system or a particular peculiarity. 
In Boardman v P.P. P., supra, it was suggested that the 
evidence of sexual overtures made to the tvo boys had 
an unusual feature in that "the grown man attempted to 
get an adolescent boy to take the male part to the 
master's passive par-t in acts of buggery". Lord Morris 
of Bor-th - y - Gest referred to the evidence as having a 
"striking similarity" and "such an underlying unity that 
probative force could fairly be yielded". In this case 
I find nothing unusual in the similar fact evidence 
tendered by Ms. Korczak and Ms. Bell. Ms. Korczak 
testified that Mr. Ladas slapped her rear on different: 
occasions whereas Ms. Bell does not suggest there was 
any physical contact of that sort. Ms, Korczak also 



- 24 - 

testified that tAr . Ladas invited her out for a couple 
of drinks and suggested that they go a a hotel room, 
whereas the approaches made to Ms, Bell, if they can be 
interpreted that way, made no mention of going for drinks 
or going to a hotel room. Indeed, the alleged approaches 
seem very different in nature and tone and, if any-hing, 
demonstrate a lack of consistency of approach. On that 
basis I am not prepared to find that the alleged sexual 
overtures made to the two complainants were so unusual, 
or bore such a striking similarity, that the evidence of 
each of the complainants should be treated as similar 
fact evidence having some probative value in the other' s 
complaint. 

Ernest Ladas also testified on his own behalf. I do not 
propose to outline his evidence except to note that he 
denied each of the allegations put forth by Ms. Bell. 
While there are some flaws in his testimony, I am not 
prepared to find, on balance, his testimony to be so 
unreliable when compared to Ms. Bell's that I would be 
prepared to conclude that he made the alleged statements 
and that he propositioned Ms. Bell or, alternatively, 
that the reasonable implications of his remarks in -he 
context of all the evidence was such that sex was a 
condition of employment. 



- 25 - 



Moreover, there is an important part of Mr. Ladas' 
evidence which is corroborated by an independent 
witness, Steve Stavrou. At the time of the alleged 
incidents, Mr. Stavrou was approximately sixteen years 
old and worked as a part-time dishwasher at the 
restaurant. He has no stake in the outcome of these 
proceedings and his evidence is thus more independent 
than that of Ms. Bell or Mr. Ernest Ladas. He gave 
his evidence in a very straightf or'^ard manner and 
without any semblance of guile and, in my view, his 
evidence weighs heavily in the balance. 

Mr. Stavrou witnessed the "sloe screw" incident ' and 
completely corroborated the evidence of Ernest Ladas that 
the remarks attributed to him by Ms. Bell were not made. 
Also, Mr. Stavrou corroborated the evidence of Tim Ladas 
that he was suspicious of Ms. Bell's conduct and work 
performance and buttressed Tim Ladas' position in 
deciding to discharge Ms. Bell. And, finally, Mr. Stavrou 
witnessed the situation when Ms. Sell picked up the $10.00 
from the floor and his version of the incident does not 
enhance Ms. Bell's credibility. 

On balance, where there is a contradiction in testimony, 
I prefer the evidence of Ernest Ladas and I further find 
that Ms. Bell's evidence, when viewed alone or in the 
context of the other evidence, is not sufficiently reliable 



- 26 - 



to found a violation of The Code as alleged by her. 

Accordingly, the complaint of Ms. Cherie Bell is 
dismissed. 



- 27 - 



III 

The second complaint to be dealt with is that of Ms. 
Anna Korczak, who was terminated in mid-October of 
1977 after having worked at the Flaming Steer Restaurant 
for approximatelv one month. Ms. Korczak did not file 
her complaint until March of 197 3 and did so only 
after she was approached by Ms. Caroline Bell, who was 
investigating the complaint of Ms. Cherie Bell. 

I place no stock in the fact that Ms. Korczak filed her 
complaint some considerable time after she was terminated 
as I infer from the evidence that she may not have been 
fully aware of her rights. 

I do not propose to discuss the principles applicable in 
this type of situation because they have been discussed 
in the case of Ms. Cherie Bell, which was heard at the 
same time. Also, the evidence tendered as similar fact 
evidence has been reviewed in the Bell case and I have 
no reason to take a different view of that evidence in 
this matter. 

This case also turns on the credibility of the complainant, 
Ms. Anna Korczak, and the respondent, 'Ar . Ernest Ladas. 
Ms. Korczak' 3 complaints are made against Mr. Ernest Ladas 
and it was Mr. Ernest Ladas who discharged her. Mr. Tim 



t 



t 



- 28 - 



Ladas did not play any relevant part in the employment 
relationship or in the termination. 

Essentially Ms. Korczak.' s evidence is that Mr. Ernest 
Ladas slapped her rear end on more than one occasion 
and that this physical contact was unsolicited and 
undesired. She also claims he made inquiries ahout her 
personal life and invited her out to drink with him and 
to have sexual relations with him, 

Ms. Korczak' s evidence was basically consistent. There 
was some evidence that she was motivated to bring this 
complaint because her financial position was impaired as 
a result of being terminated and consequently she lost 
her car. 

Mr. Ernest Ladas denied all of the allegations and claime 
that Ms, Korczak was not a good employee, that she was 
rough with customers, that she was not neat in appearance 
and that she did not perform her work at a reasonable 
standard. He also testified that he felt that she smoked 
marijuana while at work and that he caught her stealing 
and it was for all these reasons that he terminated her 
employment. 



- 29 - 



To some extent some of Mr. Ladas ' evidence as to Ms. 
Korczak's work performance is corroborated by other 
employees, particularly Steve Stavrou, who was the 
dishwasher. 

This particular matter has given me anxious consideration. 
There are both strengths and weaknesses in the evidence 
of the complainant and the respondent, Ernest Ladas. 
In my view it would be better to decide this case on 
the merits but haviag weighed the pros and cons amd the 
theories of the case put forward in the very able arguments 
of counsel for the Commission and counsel for the 
respondent, I am unable to conclude that the position of 
one side should prevail over the position of the other 
side. Thus, in the result and after considering the 
merits of each position, I find that this case falls to be 
decided on the basis of which side has the onus of proof. 

Since, in my view, it is the complainant who must es-ablish 
that on the balance of probabilities the respondent has 
acted in a manner that is in violation of The Code, the 
complaint must be dismissed. I am unable to conclude that 
the evidence lead by the complainant goes that far and, 
accordingly, the complaint of Ms. Anna Korczak is dismissed, 

DATED at Toronto this L2th day of Augus^, 1980. 




CHAIRMAN 



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